The complainant filed a complaint with the Equal Rights Division (hereinafter "division") alleging that the respondent violated the Wisconsin Fair Employment Act (hereinafter "Act") by barring him from employment because of conviction record and by printing a statement which implies or expresses discrimination because of conviction record. On September 14, 2006, an initial determination was issued by the division dismissing the former allegation, but finding probable cause with respect to the latter. No appeal was filed by the complainant, and the matter was certified for hearing on the merits of the allegation that the respondent printed a statement which implies or expresses discrimination because of conviction record, in violation of the Act.

On April 27, 2007, a hearing notice was issued advising the parties that a hearing was scheduled for July 10, 2007, at 9:00 a.m. On July 3, 2007, the complainant submitted a written request for postponement. The complainant contended that he had recently learned of a scheduling conflict pertaining to a hearing in circuit court to be held at the same date and time. The administrative law judge made no ruling with regard to the request for postponement. The complainant failed to appear at the July 10, 2007, hearing, and, on July 11, 2007, the administrative law judge dismissed his complaint as a result. The administrative law judge's decision does not address the question of why the postponement request was denied. The complainant filed a timely petition for commission review of the administrative law judge's decision.

Based on the foregoing, the commission hereby issues the following:

ORDER

The decision of the administrative law judge dated July 11, 2007, is set aside and the matter remanded for a determination of whether the complainant's failure to appear at the hearing constituted good cause, and if good cause is established, for a hearing on the merits.

Dated and mailed September 18, 2007brewecu . rrr : 164 : 9

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

On April 27, 2007, the division issued notice that a hearing in this matter would be held on July 10, 2007, at 9:00 a.m., in the State Office Building in Milwaukee. An information sheet sent along with the notice included the following statement:

"Postponements of the hearing date will be granted only for good cause and not for the mere convenience of the parties or their attorneys. If your schedule conflicts with the hearing date in the Notice of Hearing you must notify the division within ten (10) days after the date of the notice that you need a different date. After this ten-day period, postponements will normally only be granted for unforeseeable emergency circumstances that will prevent a party from presenting their case on the schedule hearing date. You should assume that the hearing will take all day and should not schedule anything else on that date."

On July 3, 2007, the complainant submitted a request for postponement. The complainant stated:

"My reason for requesting a postponement on such short notice is due to an [sic] recent scheduling conflict that occurred on 7/2/07 in which a court date was scheduled for the exact day and time of the hearing. It would be very much appreciated if the hearing could be rescheduled."

Attached to this request is a copy of a form issued by the Public Defender's Office stating, "You must appear on: 071007, At: 2:00 PM, Before Judge/Commissioner Goulee, Br. 32." However, the time 2:00 PM is crossed off, and the time 9:00 is handwritten above it. The form sets forth a warning in bold type, "If you do not show up, a warrant will be issued for your arrest!" The form does not contain the complainant's name or any identifying case number. There is nothing on the form to indicate when it was issued, and the complainant did not explain in his request for postponement why he only learned of the conflict the previous day.

The administrative law judge did not respond to the complainant's request for postponement, nor did the complainant contact the division to find out whether his request had been granted. The complainant did not appear at the July 10, 2007 hearing, and the administrative law judge dismissed the case based on his failure to appear. The dismissal decision makes no reference to the postponement request except to state that "the hearing was not canceled or postponed prior to the hearing."

The commission has held that an administrative law judge's failure to respond to a request for postponement is tantamount to denying the request, and that a party who has been given no reason to believe his motion was granted is expected to appear or show good cause why he did not.
Beasley v. OIC-GM (LIRC, Oct. 13, 2004); Connor v. Mobile Mini Inc. (LIRC, April 30, 2004). However, in
Beasley, the commission noted that:

"While failure to rule on the motion [for postponement] prior to the hearing was tantamount to a denial of the motion, it would have been better practice for the administrative law judge to issue a formal ruling on the motion, setting forth his rationale for granting or denying it. Indeed, depending upon the circumstances of the case, a failure to do so may warrant a remand for further proceedings.
Jaskolski v. M&I Data Services (LIRC, May 23, 1990);
Schilling v. Walworth County (LIRC, March 9, 1983)."

The Schilling case involved a situation in which the complainant contacted the administrative law judge two days before the hearing to request a postponement because he was ill and unable to travel. As in this case, the administrative law judge failed to rule on the request for postponement, and failed to address the issue in the dismissal decision. The commission set aside the dismissal and remanded for a determination on whether the complainant's failure to appear at the hearing was for good cause.

Conversely, in Jaskolski, also involving a request for postponement which was denied without explanation, the commission declined to send the matter back for further hearing because, based upon the facts alleged by the complainant in her postponement request, it seemed unlikely that good cause would be found. The commission made a point of noting, however, that the administrative law judge had ignored the teachings of
Schilling, that where a complaint is dismissed for failure to appear, the administrative law judge must discuss his reasons for denying any last-minute request for a postponement that preceded the hearing. The commission stated:

"Such an absence of explanation from an Administrative Law Judge with respect to the denial of the last-minute postponement request may in some cases require a remand for further decision or further proceedings. The commission has not resorted to this here, however, because it was satisfied based on its review of the file that, whatever may have motivated the Administrative Law Judge, the circumstances were such that granting the Complainant's last-minute postponement request prior to the March 9, 1990 hearing was not required."

In this case the complainant alleged a conflict between a scheduled court
appearance and the hearing before the administrative law judge. If, in fact, the
complainant can establish that he had a court date that conflicted with the
equal rights proceeding, and if he can demonstrate that he only learned of that
conflict shortly before filing the postponement request, then he will have
established the type of unforeseeable emergency circumstance that would have
warranted granting a postponement after the ten-day period. The commission
believes the complainant should be given an opportunity to submit credible and
competent evidence (1) which would permit a conclusion that a postponement was appropriate. It has, therefore, remanded this matter for further hearing.

(1)( Back )
The complainant should note that the commission does not consider the document
submitted along with his postponement request, a photocopy of a form issued by
the Public Defender's Office, which does not include the complainant's name or
identifying case information, and which shows that the hearing was originally
scheduled for 2:00 p.m., rather than 9:00 a.m., to be sufficient proof of a
scheduling conflict. On remand the complainant should present a letter or other
document signed by the judge or clerk of court indicating that the complainant's
presence was required by the court on July 10, 2007, at 9:00 a.m. In the
alternative, the complainant may submit an affidavit from the Public Defender
Officer's containing the same information.